Text: H.R.2190 — 116th Congress (2019-2020)All Information (Except Text)

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Introduced in House (04/09/2019)


116th CONGRESS
1st Session
H. R. 2190


To improve accountability of senior officials and other supervisory employees of the Department of Labor.


IN THE HOUSE OF REPRESENTATIVES

April 9, 2019

Mr. Smucker (for himself and Mr. Rooney of Florida) introduced the following bill; which was referred to the Committee on Education and Labor, and in addition to the Committee on Oversight and Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To improve accountability of senior officials and other supervisory employees of the Department of Labor.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

(a) Short title.—This Act may be cited as the “Department of Labor Accountability Act of 2019”.

SEC. 2. Senior executives: removal, demotion, or suspension based on performance or misconduct.

(a) Authority.—The Secretary may, as provided in this section, reprimand or suspend, involuntarily reassign, demote, or remove a covered employee from a senior executive position at the Department if the Secretary determines that the misconduct or performance of the covered employee warrants such action. If the Secretary so removes such an individual, the Secretary may remove the individual from the civil service (as defined in section 2101 of title 5, United States Code).

(b) Rights and procedures.—

(1) RIGHTS.—A covered employee who is the subject of an action under subsection (a) is entitled to—

(A) advance notice of the action and a file containing all evidence in support of the proposed action;

(B) be represented by an attorney or other representative of the covered employee’s choice; and

(C) grieve the action in accordance with an internal grievance process that the Secretary, in consultation with the Whistleblower Protection Ombudsman, shall establish for purposes of this subsection.

(2) TIMING.—

(A) The aggregate period for notice, response, and decision on an action under subsection (a) may not exceed 15 business days.

(B) The period for the response of a covered employee to a notice under paragraph (1)(A) of an action under subsection (a) shall be 7 business days.

(C) A decision under this paragraph on an action under subsection (a) shall be issued not later than 15 business days after notice of the action is provided to the covered individual under paragraph (1)(A). The decision shall be in writing, and shall include the specific reasons therefor.

(D) The Secretary shall ensure that the grievance process established under paragraph (1)(C) takes fewer than 21 days.

(3) FINALITY.—A decision under this subsection (a) that is not grieved, and a grievance decision under paragraph (2)(D), shall be final and conclusive.

(4) JUDICIAL REVIEW.—A covered employee adversely affected by a decision under subsection (a) that is not grieved, or by a grievance decision under paragraph (2)(D), may obtain judicial review of such decision.

(5) ACTION OF THE COURT.—In any case in which judicial review is sought under paragraph (4), the court shall review the record and may set aside any Department action found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with a provision of law;

(B) obtained without procedures required by a provision of law having been followed; or

(C) unsupported by substantial evidence.

(c) Relation to other provisions of law.—Section 3592(b)(1) of title 5, United States Code, and the procedures under section 7543(b) of such title do not apply to an action under subsection (a).

SEC. 3. Employees: removal, demotion, or suspension based on performance or misconduct.

(a) Authority.—The Secretary may remove, demote, or suspend a covered individual who is an employee of the Department if the Secretary determines the performance or misconduct of the covered individual warrants such removal, demotion, or suspension. If the Secretary so removes, demotes, or suspends such a covered individual, the Secretary may—

(1) remove the covered individual from the civil service (as defined in section 2101 of title 5, United States Code);

(2) demote the covered individual by means of a reduction in grade for which the covered individual is qualified, that the Secretary determines is appropriate, and that reduces the annual rate of pay of the covered individual; or

(3) suspend the covered individual.

(b) Pay of certain demoted individuals.—

(1) Notwithstanding any other provision of law, any covered individual subject to a demotion under subsection (a) shall, beginning on the date of such demotion, receive the annual rate of pay applicable to such grade.

(2) (A) A covered individual so demoted may not be placed on administrative leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the covered individual reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave.

(B) If a covered individual so demoted does not report for duty or receive approval to use accrued unused leave, such covered individual shall not receive pay or other benefits pursuant to subsection (d)(5).

(c) Procedures.—

(1) IN GENERAL.— (A) The aggregate period for notice, response, and final decision in a removal, demotion, or suspension under this section may not exceed 15 business days.

(B) The period for the response of a covered individual to a notice of a proposed removal, demotion, or suspension under this section shall be 7 business days.

(C) Chapter 43 and paragraph (3) of subsection (b) of section 7513 of title 5, United States Code, shall apply with respect to a removal, demotion, or suspension under this section.

(D) The procedures in this subsection shall supersede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures.

(2) DEADLINE FOR FINAL DECISION.—The Secretary shall issue a final decision with respect to a removal, demotion, or suspension under this section not later than 15 business days after the Secretary provides notice, including a file containing all the evidence in support of the proposed action, to the covered individual of the removal, demotion, or suspension. The decision shall be in writing and shall include the specific reasons therefor.

(3) APPEAL TO MERIT SYSTEMS PROTECTION BOARD.—

(A) Subject to subparagraph (B) and subsection (d), any removal or demotion under this section, and any suspension of more than 14 days under this section, may be appealed to the Merit Systems Protection Board, which shall refer such appeal to an administrative judge pursuant to section 7701(b)(1) of title 5.

(B) An appeal under subparagraph (A) of a removal, demotion, or suspension may only be made if such appeal is made not later than 10 business days after the date of such removal, demotion, or suspension.

(d) Expedited review.—

(1) Upon receipt of an appeal under subsection (c)(3)(A), the administrative judge shall expedite any such appeal under section 7701(b)(1) of title 5, United States Code, and, in any such case, shall issue a final and complete decision not later than 180 days after the date of the appeal.

(2) (A) Notwithstanding section 7701(c)(1)(B) of title 5, United States Code, the administrative judge shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence.

(B) Notwithstanding title 5, United States Code, or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the administrative judge shall not mitigate the penalty prescribed by the Secretary.

(3) (A) The decision of the administrative judge under paragraph (1) may be appealed to the Merit Systems Protection Board.

(B) Notwithstanding section 7701(c)(1)(B) of title 5, United States Code, the Merit Systems Protection Board shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence.

(C) Notwithstanding title 5, United States Code, or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the Merit Systems Protection Board shall not mitigate the penalty prescribed by the Secretary.

(4) In any case in which the administrative judge cannot issue a decision in accordance with the 180-day requirement under paragraph (1), the Merit Systems Protection Board shall, not later than 14 business days after the expiration of the 180-day period, submit to Congress a report that explains the reasons why a decision was not issued in accordance with such requirement.

(5) A decision of the Merit Systems Protection Board under paragraph (3) may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to section 7703 of title 5, United States Code, or to any court of appeals of competent jurisdiction pursuant to subsection (b)(1)(B) of such section.

(6) The Merit Systems Protection Board may not stay any removal or demotion under this section, except as provided in section 1214(b) of title 5.

(7) During the period beginning on the date on which a covered individual appeals a removal from the civil service under subsection (c) and ending on the date that the United States Court of Appeals for the Federal Circuit issues a final decision on such appeal, such covered individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits related to the employment of the individual by the Department.

(8) To the maximum extent practicable, the Secretary shall provide to the Merit Systems Protection Board such information and assistance as may be necessary to ensure an appeal under this subsection is expedited.

(9) If an employee prevails on appeal under this section, the employee shall be entitled to backpay (as provided in section 5596 of title 5, United States Code).

(10) If an employee who is subject to a collective bargaining agreement chooses to grieve an action taken under this section through a grievance procedure provided under the collective bargaining agreement, the timelines and procedures set forth in subsection (c) and this subsection shall apply.

(e) Whistleblower protection.—

(1) In the case of a covered individual seeking corrective action (or on behalf of whom corrective action is sought) from the Office of Special Counsel based on an alleged prohibited personnel practice described in section 2302(b) of title 5, United States Code, the Secretary may not remove, demote, or suspend such covered individual under subsection (a) without the approval of the Special Counsel under section 1214(f) of title 5.

(2) In the case of a covered individual who has made a whistleblower disclosure to the Whistleblower Protection Ombudsman, the Secretary may not remove, demote, or suspend such covered individual under subsection (a) until—

(A) in the case in which the Assistant Secretary determines to refer the whistleblower disclosure under subsection (e) to an office or other investigative entity, a final decision with respect to the whistleblower disclosure has been made by such office or other investigative entity; or

(B) in the case in which the Assistant Secretary determines not to the refer the whistleblower disclosure under such section, the Assistant Secretary makes such determination.

(f) Termination of investigations by Office of Special Counsel.—

(1) Notwithstanding any other provision of law, the Special Counsel (established by section 1211 of title 5, United States Code) may terminate an investigation of a prohibited personnel practice alleged by an employee or former employee of the Department after the Special Counsel provides to the employee or former employee a written statement of the reasons for the termination of the investigation.

(2) Such statement may not be admissible as evidence in any judicial or administrative proceeding without the consent of such employee or former employee.

(g) Vacancies.—In the case of a covered individual who is removed or demoted under subsection (a), to the maximum extent feasible, the Secretary shall fill the vacancy arising as a result of such removal or demotion.

SEC. 4. Reduction of benefits of employees convicted of certain crimes.

(a) Reduction of annuity for removed employee.—

(1) IN GENERAL.—The Secretary shall order that the covered service of an employee of the Department removed from a position for performance or misconduct under section 2 or any other provision of law shall not be taken into account for purposes of calculating an annuity with respect to such individual under chapter 83 or chapter 84 of title 5, United States Code, if—

(A) the Secretary determines that the individual is convicted of a felony (and the conviction is final) that influenced the individual’s performance while employed in the position;

(B) before such order is made, the individual is afforded—

(i) notice of the proposed order; and

(ii) an opportunity to respond to the proposed order by not later than ten business days following receipt of such notice; and

(C) the Secretary issues the order—

(i) in the case of a proposed order to which an individual responds under subparagraph (B)(ii), not later than five business days after receiving the response of the individual; or

(ii) in the case of a proposed order to which an individual does not respond, not later than 15 business days after the Secretary provides notice to the individual under subparagraph (B)(i).

(2) APPEAL.—Any individual with respect to whom an annuity is reduced under this subsection may appeal the reduction to the Director of the Office of Personnel Management pursuant to such regulations as the Director may prescribe for purposes of this subsection.

(b) Reduction of annuity for retired employee.—

(1) IN GENERAL.—The Secretary may order that the covered service of an individual who the Secretary proposes to remove for performance or misconduct under section 2 or any other provision of law but who leaves employment at the Department prior to the issuance of a final decision with respect to such action shall not be taken into account for purposes of calculating an annuity with respect to such individual under chapter 83 or chapter 84 of title 5, United States Code, if—

(A) the Secretary determines that individual is convicted of a felony (and the conviction is final) that influenced the individual’s performance while employed in the position;

(B) before such order is made, the individual is afforded—

(i) notice of the proposed order; and

(ii) an opportunity to respond to the proposed order by not later than ten business days following receipt of such notice; and

(C) the Secretary issues the order—

(i) in the case of a proposed order to which an individual responds under subparagraph (B)(ii), not later than five business days after receiving the response of the individual; or

(ii) in the case of a proposed order to which an individual does not respond, not later than 15 business days after the Secretary provides notice to the individual under subparagraph (B)(i).

(2) APPEAL.—Upon the issuance of an order by the Secretary under paragraph (1), the individual shall have an opportunity to appeal the order to the Director of the Office of Personnel Management before the date that is seven business days after the date of such issuance.

(3) FINAL DECISION.—The Director of the Office of Personnel Management shall make a final decision with respect to an appeal under paragraph (2) within 30 business days of receiving the appeal.

(c) Administrative requirements.—Not later than 37 business days after the Secretary issues a final order under subsection (a) or (b) with respect to an individual, the Director of the Office of Personnel Management shall recalculate the annuity of the individual.

(d) Lump-Sum Annuity Credit.—Any individual with respect to whom an annuity is reduced under subsection (a) or (b) shall be entitled to be paid so much of such individual’s lump-sum credit as is attributable to the period of covered service.

(e) Spouse or children exception.—

(1) The Secretary, in consultation with the Director of the Office of Personnel Management, shall prescribe regulations that may provide for the payment to the spouse or children of any individual referred to in subsection (a) or (b) of any amounts which (but for this subsection) would otherwise have been nonpayable by reason of such subsections.

(2) Regulations prescribed under paragraph (1) shall be consistent with the requirements of sections 8332(o)(5) and 8411(l)(5) of title 5, United States Code, as the case may be.

SEC. 5. Recoupment of bonuses or awards paid to employees of Department.

(a) In general.—Notwithstanding any other provision of law, the Secretary may issue an order directing an employee of the Department to repay the amount, or a portion of the amount, of any award or bonus paid to the employee under title 5, United States Code, including under chapter 45 or 53 of such title, if—

(1) the Secretary determines that the individual engaged in misconduct or poor performance prior to payment of the award or bonus, and that such award or bonus would not have been paid, in whole or in part, had the misconduct or poor performance been known prior to payment;

(2) before such repayment, the employee is afforded—

(A) notice of the proposed order; and

(B) an opportunity to respond to the proposed order by not later than 10 business days after the receipt of such notice; and

(3) the Secretary issues the order—

(A) in the case of a proposed order to which an individual responds under paragraph (2)(B), not later than five business days after receiving the response of the individual; or

(B) in the case of a proposed order to which an individual does not respond, not later than 15 business days after the Secretary provides notice to the individual under paragraph (2)(A).

(b) Appeal of order of Secretary.—

(1) Upon the issuance of an order by the Secretary under subsection (a) with respect to an individual, the individual shall have an opportunity to appeal the order to the Director of the Office of Personnel Management before the date that is seven business days after the date of such issuance.

(2) The Director shall make a final decision with respect to an appeal under paragraph (1) within 30 business days after receiving such appeal.

(c) Effective date.—Chapter 45 or 53 of title 5, United States Code, shall apply with respect to an award or bonus paid by the Secretary to any employee of the Department on or after the date of the enactment of this Act.

(d) Construction.—Nothing in this Act or the amendments made by this Act may be construed to modify the certification issued by the Office of Personnel Management and the Office of Management and Budget regarding the performance appraisal system of the Senior Executive Service of the Department.

SEC. 6. Recoupment of relocation expenses paid on behalf of employees of Department.

(a) In general.—Notwithstanding any other provision of law, the Secretary may issue an order directing an employee of the Department to repay the amount, or a portion of the amount, paid to or on behalf of the employee under title 5, United States Code, for relocation expenses, including any expenses under section 5724 or 5724a of such title, or if—

(1) the Secretary determines that relocation expenses were paid following an act of fraud or malfeasance that influenced the authorization of the relocation expenses;

(2) before such repayment, the employee is afforded—

(A) notice of the proposed order; and

(B) an opportunity to respond to the proposed order not later than ten business days following the receipt of such notice; and

(3) the Secretary issues the order—

(A) in the case of a proposed order to which an individual responds under paragraph (2)(B), not later than five business days after receiving the response of the individual; or

(B) in the case of a proposed order to which an individual does not respond, not later than 15 business days after the Secretary provides notice to the individual under paragraph (2)(A).

(b) Appeal of order of Secretary.—

(1) Upon the issuance of an order by the Secretary under subsection (a) with respect to an individual, the individual shall have an opportunity to appeal the order to the Director of the Office of Personnel Management before the date that is seven business days after the date of such issuance.

(2) The Director shall make a final decision with respect to an appeal under paragraph (1) within 30 days after receiving such appeal.

(c) Effective date.—Chapter 45 or 53 of title 5, United States Code, shall apply with respect to an amount paid by the Secretary to or on behalf of an employee of the Department for relocation expenses on or after the date of the enactment of this Act.

SEC. 7. Major adverse actions involving professional conduct or competence.

(a) Establishment of Disciplinary Appeals Board.—

(1) APPOINTMENT.—The Secretary shall appoint 3 employees of the Department who are senior executives or career senior executives to serve on a Disciplinary Appeals Board (hereafter referred to as the “Board”) which shall have the exclusive authority to review any disciplinary action taken against a covered employee of the Department which arises out of or includes a question of professional misconduct or competence.

(2) POLITICAL MAKEUP OF THE BOARD.—At least one member of the Board shall be of a different political party than the other two members.

(b) Initial Procedures.—

(1) RIGHTS OF COVERED EMPLOYEES.—

(A) STATEMENT OF CHARGES AND EVIDENCE.—In any case in which charges are brought against a covered employee which arises out of, or includes, a question of professional conduct or competence which could result in a major adverse action, the covered employee is entitled, within the aggregate time period specified in paragraph (4), to the following:

(i) Advance written notice from the deciding official specifically stating the basis for each charge, the adverse actions that could be taken if the charges are sustained, a statement of any specific law, regulation, policy, procedure, practice, or other specific instruction that has been violated with respect to each charge, and a file containing all the evidence in support of each charge, except that the requirement for notification in advance may be waived if there is reasonable cause to believe that the employee has committed a crime for which the employee may be imprisoned.

(ii) The opportunity, within the time period provided for in paragraph (4), to present an answer orally and in writing to the deciding official, who shall be an official higher in rank than the charging official, and to submit affidavits and other documentary evidence in support of the answer. The period for the response of a covered employee shall be seven business days.

(B) RIGHT TO REPRESENTATION.—In any case described in paragraph (1), the employee is entitled to be represented by an attorney or other representative of the employee's choice at all stages of the case.

(2) FINAL DECISION BY DECIDING OFFICER.—After considering the employee's answer, if any, and within the time period provided for in paragraph (5)(B), the deciding official shall render a decision on the charges. The decision shall be in writing and shall include the deciding official provides notice on the charges for purposes of paragraph (1)(A)(i).

(3) Appeals to the Board.—The Secretary shall require that any appeal to a Board from a decision to impose a major adverse action shall be received within seven business days after the date of service of the written decision on the covered employee.

(4) Timing.—The aggregate period for the resolution of charges against an employee under this subsection may not exceed 15 business days.

(5) Supercession of any collective bargaining agreement.—The procedures in this subsection shall supersede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures.

(c) Procedures of Appeals before the Board.—

(1) INITIAL DETERMINATION.—When the Board convenes to consider an appeal in a case under this section, the Board, before proceeding to consider the merits of the appeal, shall determine whether the case is properly before it.

(2) DECISIONS BY THE BOARD.—Upon hearing such an appeal, the Board shall, with respect to each charge appealed to the Board, sustain the charge, dismiss the charge, or sustain the charge in part and dismiss the charge in part. If the deciding official is sustained (in whole or in part) with respect to any such charge, the Board shall—

(A) approve the action as imposed;

(B) approve the action with modification, reduction, or exception; or

(C) reverse the action.

(3) RIGHT TO ORAL HEARING.—A Board shall afford an employee appealing an adverse action under this section an opportunity for an oral hearing. If such a hearing is held, the Board shall provide the employee with a transcript of the hearing.

(4) REPRESENTATION OF MANAGEMENT.—The Secretary may designate an employee of the Department to represent management in any case before a Board.

(5) DEADLINE FOR DECISION.—The Board shall render a decision in any case within 45 days of completion of the hearing, if there is a hearing, and in any event no later than 120 days after the appeal commenced.

(d) Actions by the Secretary.—

(1) IF THE SECRETARY AGREES WITH THE DECISION OF THE BOARD.—After resolving any question as to whether a matter involves professional conduct or competence, the Secretary shall cause to be executed the decision of the Board in a timely manner and in any event in not more than 90 days after the decision of the Board is received by the Secretary. Pursuant to the Board's decision, the Secretary may order reinstatement, award back pay, and provide such other remedies as the Board found appropriate relating directly to the proposed action, including expungement of records relating to the action.

(2) IF THE SECRETARY DISAGREES WITH A DECISION BY THE BOARD.—

(A) CONTRARY TO EVIDENCE OR UNLAWFUL.—If the Secretary finds a decision of the Board to be clearly contrary to the evidence or unlawful, the Secretary may—

(i) reverse the decision of the Board; or

(ii) vacate the decision of the Board and remand the matter to the Board for further consideration.

(B) NOT JUSTIFIED BY THE NATURE OF THE CHARGES.—If the Secretary finds the decision of the Board (while not clearly contrary to the evidence or unlawful) to be not justified by the nature of the charges, the Secretary may mitigate the adverse action imposed.

(3) SECRETARY’S ACTION FINAL.—The Secretary's execution of a Board’s decision shall be the final administrative action in the case.

(e) Judicial review.—

(1) IN GENERAL.—A covered employee adversely affected by a final order or decision of a Board (as reviewed by the Secretary) may obtain judicial review of the order or decision.

(2) ACTIONS BY THE COURT.—In any case in which judicial review is sought under this subsection, the court shall review the record and hold unlawful and set aside any agency action, finding, or conclusion found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) obtained without procedures required by law, rule, or regulation having been followed; or

(C) unsupported by substantial evidence.

SEC. 8. Procedures for other adverse actions not relating to misconduct or competence.

(a) Procedures prescribed by the Secretary.—

(1) AUTHORITY.—The Secretary shall prescribe by regulation grievance procedures for the consideration of grievances of a covered employee arising from adverse personnel actions in which each action taken either—

(A) is not a major adverse action; or

(B) does not arise out of a question of professional misconduct or competence.

(2) REQUIREMENTS.—Grievance procedures prescribed under subsection (a) shall include the following:

(A) A right to formal review by an impartial examiner within the Department, who, in the case of an adverse action arising from a question of professional conduct or competence, shall be selected from the Disciplinary Appeals Board established under section 7.

(B) A right to a prompt report of the findings and recommendations by the impartial examiner.

(C) A right to a prompt review of the examiner's findings and recommendations by an official of a higher level than the official who decided upon the action. That official may accept, modify, or reject the examiner's recommendations.

(b) Option of employee covered by collective bargaining agreement.—In the case of an employee who is a member of a collective bargaining unit under chapter 71 of title 5, the employee may seek review of an adverse action described in subsection (a) either under the grievance procedures provided through regulations prescribed under subsection (a) or through grievance procedures determined through collective bargaining, but not under both. The employee shall elect which grievance procedure to follow. Any such election may not be revoked.

(c) Rights of employees.—A covered employee filing a grievance under this section shall be entitled to the following:

(1) In any case in which charges are brought against covered employee which could result in a major adverse action and which do not involve professional conduct or competence, the employee is entitled to notice and an opportunity to answer with respect to those charges.

(2) In any other case in which charges are brought against a covered employee the employee is entitled, within the aggregate time period specified in paragraph (3)(A), to—

(A) written notice stating the specific reason for the proposed action; and

(B) time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer.

(3) (A) The aggregate period for the resolution of charges against an employee under paragraph (1) or (2) may not exceed 15 business days.

(B) The period for the response of an employee under paragraph (1) or (2)(B) to written notice of charges under paragraph (1) or (2)(A), as applicable, shall be seven business days.

(C) The deciding official shall render a decision on charges under paragraph (1) or (2) not later than 15 business days after notice is provided on the charges for purposes of paragraph (1) or (2)(A), as applicable.

(d) Right to representation.—In any review of an adverse action under the grievance procedures prescribed under subsection (a), the employee is entitled to be represented by an attorney or other representative of the employee's choice at all stages of the case.

SEC. 9. Improvement of training for supervisors.

The Secretary shall provide to each employee of the Department who is employed as a supervisor periodic training on the following:

(1) The rights of whistleblowers and how to address a report by an employee of a hostile work environment, reprisal, or harassment.

(2) How to effectively motivate, manage, and reward the employees who report to the supervisor.

(3) How to effectively manage employees who are performing at an unacceptable level and access assistance from the human resources office of the Department and the Office of the General Counsel of the Department with respect to those employees.

SEC. 10. Assessment and report on effect on senior executives at the Department of Labor.

(a) In general.—Not later than two years after the date of the enactment of this Act, the Secretary shall—

(1) measure and assess the effect of the enactment of this Act on the morale, engagement, hiring, promotion, retention, discipline, and productivity of individuals in senior executive positions at the Department; and

(2) submit to Congress a report on the findings of the Secretary with respect to the measurement and assessment carried out under paragraph (1).

(b) Elements.—The assessment required by subsection (a)(1) shall include the following:

(1) With respect to engagement, trends in morale of individuals in senior executive positions and individuals aspiring to senior executive positions.

(2) With respect to promotions—

(A) whether the Department is experiencing an increase or decrease in the number of employees participating in leadership development and candidate development programs with the intention of becoming candidates for senior executive positions; and

(B) trends in applications to senior executive positions within the Department.

(3) With respect to retention—

(A) trends in retirement rates of individuals in senior executive positions at the Department;

(B) trends in quit rates of individuals in senior executive positions at the Department;

(C) rates of transfer of—

(i) individuals from other Federal agencies into senior executive positions at the Department; and

(ii) individuals from senior executive positions at the Department to other Federal agencies; and

(D) trends in total loss rates by job function.

(4) With respect to disciplinary processes—

(A) regarding individuals in senior executive positions at the Department who are the subject of disciplinary action—

(i) the length of the disciplinary process in days for such individuals both before the date of the enactment of this Act and under the provisions of this Act described in subsection (a)(1); and

(ii) the extent to which appeals by such individuals are upheld under such provisions as compared to before the date of the enactment of this Act;

(B) the components or offices of the Department which experience the greatest number of proposed adverse actions against individuals in senior executive positions and components and offices which experience the least relative to the size of the components or offices’ total number of senior executive positions;

(C) the tenure of individuals in senior executive positions who are the subject of disciplinary action;

(D) whether the individuals in senior executive positions who are the subject of disciplinary action have previously been disciplined; and

(E) the number of instances of disciplinary action taken by the Secretary against individuals in senior executive positions at the Department as compared to governmentwide discipline against individuals in Senior Executive Service positions (as defined in section 3132(a) of title 5, United States Code) as a percentage of the total number of individuals in senior executive positions at the Department and Senior Executive Service positions (as so defined).

(5) With respect to hiring—

(A) the degree to which the skills of newly hired individuals in senior executive positions at the Department are appropriate with respect to the needs of the Department;

(B) the types of senior executive positions at the Department most commonly filled under the authorities in the provisions described in subsection (a)(1);

(C) the number of senior executive positions at the Department filled by hires outside of the Department compared to hires from within the Department;

(D) the length of time to fill a senior executive position at the Department and for a new hire to begin working in a new senior executive position;

(E) the mission-critical deficiencies filled by newly hired individuals in senior executive positions and the connection between mission-critical deficiencies filled under the provisions described in subsection (a) and annual performance of the Department;

(F) the satisfaction of applicants for senior executive positions at the Department with the hiring process, including the clarity of job announcements, reasons for withdrawal of applications, communication regarding status of applications, and timeliness of hiring decision; and

(G) the satisfaction of newly hired individuals in senior executive positions at the Department with the hiring process and the process of joining and becoming oriented with the Department.

SEC. 11. Measurement of Department of Labor disciplinary process outcomes and effectiveness.

(a) Measuring and collecting.—

(1) IN GENERAL.—The Secretary shall measure and collect information on the outcomes of disciplinary actions carried out by the Department during the three-year period ending on the date of the enactment of this Act and the effectiveness of such actions.

(2) ELEMENTS.—In measuring and collecting pursuant to paragraph (1), the Secretary shall measure and collect information regarding the following:

(A) The average time from the initiation of an adverse action against an employee at the Department to the final resolution of that action.

(B) The number of distinct steps and levels of review within the Department involved in the disciplinary process and the average length of time required to complete these steps.

(C) The rate of use of alternate disciplinary procedures compared to traditional disciplinary procedures and the frequency with which employees who are subject to alternative disciplinary procedures commit additional offenses.

(D) The number of appeals from adverse actions filed against employees of the Department, the number of appeals upheld, and the reasons for which the appeals were upheld.

(E) The use of paid administrative leave during the disciplinary process and the length of such leave.

(b) Report.—

(1) IN GENERAL.—Not later than December 31, 2020, the Secretary shall submit to Congress a report on the disciplinary procedures and actions of the Department.

(2) CONTENTS.—The report submitted under paragraph (1) shall include the following:

(A) The information collected under subsection (a).

(B) The findings of the Secretary with respect to the measurement and collection carried out under subsection (a).

(C) An analysis of the disciplinary procedures and actions of the Department.

(D) Suggestions for improving the disciplinary procedures and actions of the Department.

(E) Such other matters as the Secretary considers appropriate.

SEC. 12. Definitions.

In this Act the following definitions apply:

(1) COVERED EMPLOYEE.—The term “covered employee” means—

(A) a career appointee (as that term is defined in section 3132(a)(4) of title 5, United States Code);

(B) any individual who occupies an administrative or executive position; or

(C) an individual occupying a senior executive position.

(2) COVERED INDIVIDUAL.—The term “covered individual”, for purposes of section 3, means an individual occupying a position at the Department, but does not include—

(A) an individual occupying a senior executive position;

(B) an individual who has not completed a probationary or trial period; or

(C) a political appointee.

(3) COVERED SERVICE.—The term “covered service” means, with respect to an individual subject to a removal for performance or misconduct, the period of service beginning on the date that the Secretary determines under such applicable provision that the individual engaged in activity that gave rise to such action and ending on the date that the individual is removed from or leaves a position of employment at the Department prior to the issuance of a final decision with respect to such action.

(4) DEPARTMENT.—The term “Department” means the Department of Labor.

(5) GRADE.—The term “grade” has the meaning given such term in section 7511(a) of title 5.

(6) LUMP-SUM CREDIT.—The term “lump-sum credit” has the meaning given such term in section 8331(8) or section 8401(19) of title 5, United States Code, as the case may be.

(7) MISCONDUCT.—The term “misconduct” includes neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.

(8) POLITICAL APPOINTEE.—The term “political appointee” means an individual who is—

(A) employed in a position described under sections 5312 through 5316 of title 5, United States Code (relating to the Executive Schedule);

(B) a limited term appointee, limited emergency appointee, or noncareer appointee in the Senior Executive Service, as defined under paragraphs (5), (6), and (7), respectively, of section 3132(a) of title 5, United States Code; or

(C) employed in a position of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations, or successor regulation.

(9) SECRETARY.—The term “Secretary” means the Secretary of Labor.

(10) SENIOR EXECUTIVE POSITION.—The term “senior executive position” means—

(A) with respect to a career appointee (as that term is defined in section 3132(a) of title 5, United States Code), a Senior Executive Service position (as such term is defined in such section); and

(B) with respect to a covered employee or covered individual, has the meaning given such term in section 3132(a) of title 5, United States Code.

(11) SUPERVISOR.—The term “supervisor” has the meaning given such term in section 7103(a) of title 5, United States Code.

(12) SERVICE.—The term “service” has the meaning given such term in section 8331(12) or section 8401(26) of title 5, United States Code, as the case may be.

(13) SUSPEND.—The term “suspend” means the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay for a period in excess of 14 days.

(14) WHISTLEBLOWER.—The term “whistleblower” means one who makes a whistleblower disclosure.

(15) WHISTLEBLOWER DISCLOSURE.—The term “whistleblower disclosure” means any disclosure of information by an employee of the Department or individual applying to become an employee of the Department which the employee or individual reasonably believes evidences—

(A) a violation of a law, rule, or regulation; or

(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.